By Adegoke Kayode Esq
The current legal paradigm on mental illness is derived from the M’Naghten Rules, a jury instruction proposed in the case of R v M’Naghten,[1] wherein the Court Instructed:
Every man is presumed to be sane, and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.
These Rules are codified in Sections 27 and 28 of the Criminal Code and form the basis on which our jurisprudence looks at Insanity in cases where such issues arise. However, the 1843 McNaghten’s Case was decided nearly 200 years ago, and our understanding of mental health, mental illness, malingering have exponentially grown and developed in the last 50 years, yet the law has yet to catch up.
In his epoch-defining magnum opus, The Myth of Mental Illness, Dr Thomas Szasz[2] concluded decisively that Mental Illness is inherently a misnomer, an oxymoron at best. Between his preface and first chapter he outlined the logical, lexical tricks that the phrase played on the minds of psychologists and psychiatrists in particular and the population in general. (What is the difference between a psychologist and a psychiatrist? Hint: only one of the two is an actual physician)
He demonstrated, citing the great psychologists from Nietzsche and Freud to Jung, that what we describe as mental illness is simply observed human behaviour to which we have ascribed moral descriptors. (for example, it is not uncommon to see Adolf Hitler described as a ‘psychopath’[3] or a ‘sociopath’) This is not a conclusion that is reached through medical examination, but simply a description of the morality of the person exhibiting the act we describe as mentally ill. This is why psychologists were able to describe President Donald Trump is mentally unstable without ever medically examining him[4]. We have all called someone crazy, idiot, imbecile, mad, insane, psycho, psychopath, sociopath at some point. All without medical examination required to reach such a conclusion[5]. We simply commented upon the behaviour that the individual exhibited in the moment.
In criminal law, the objective is to punish, and correct this behaviour. Thus, It is difficult to define a crime as the culmination of criminal act or actus reus, with a criminal mind or mens rea. This definition is easily defeated by strict liability offences, such as not wearing a seat belt, running a red light, or not paying your taxes. The law cares not about the state of mind, or memory when committing these offences. Why is a different standard applied to rape, murder and more egregious offences?
This article wishes to examine 3 cases. The first is a case in Abuja, Nigeria[6]. On a calm Saturday morning, after a stormy night, 6-year-old Yuna [Name Changed] was playing outside her house. A 20-year-old man named Abdul approached her with a suya knife and grabbed her, forcing her to the ground and attempted to slit her throat. Yuna grabbed the knife and struggled with Abdul, screaming for help. Yuna’s father came out of the house and beat Abdul off. Abdul took off running and Yuna’s father chased after him. He was caught and subdued until the police arrived. Yuna was taken to the hospital and was treated of her injuries. Her strength prevented her wounds from being too deep.
The Prosecution called three witnesses to prove a case of Attempted Culpable Homicide. Yuna, her father, and the investigating police officer testified. I closed the prosecution case and the defence counsel, a lawyer from Legal Aid addressed the court. He informed the court that his client is mentally ill, because he is “not normal”; that when people speak to him, he laughs and smiles without reason; he’s unable to stand trial as a result. Prosecution countered vehemently, asking that the court command the counsel to lead evidence to support these facts or in the alternative, testify to these claims himself. The court decided to rule on whether the Defendant was able to testify. The Court asked some questions:
- What is your name?
- How old are you?
- Do you know where you are?
- What did you eat today?
Abdul answered all these questions coherently and accurately. In fact, he stated that he hadn’t eaten that day because it was Ramadan. The court was convinced that the Defendant was mentally fit to testify. He testified exactly what was described above. Under oath, he narrated the events to such detail that were not even contained in the statements against him, but all the salient facts required for the prosecution were admitted by the Defendant before the court.
Naturally, the Prosecution did not have any cross-examination of such a helpful witness. On address, the defence counsel attempted to raise the issue of mental illness and insanity again, supporting these assertions with a purported LACK OF MOTIVE. His argument was that Abdul MUST BE INSANE because there was NO MOTIVE for his actions in trying to slit the throat of a 6-year-old girl, with whom he had no prior problem.
The Prosecution argued that there is no evidence of the defendant’s mental “illness” before the court. There was no medical report before the court to show that indeed the Defendant suffered from mental “illness” and that such “illness” was such that would have impaired his actions at the time of the offence. There was further argument by the prosecution that MOTIVE IS IRRELEVANT, to crime. The court agreed with the prosecution on both arguments.
The Defendant was found guilty of the count, contrary to Section 229 of the Penal Code. Attempted Culpable Homicide carries a maximum of imprisonment for life. The Prosecution asked the court for the maximum sentence as the crime was committed against a vulnerable victim, whose life has been significantly affected by the crime. The Defendant made his own allocution speaking on his “muh socio-economic factors”, his wife and young child (ironic). The court sentenced him to 6 years in prison from date of remand. He was out within 2 years.
Dr Thomas Szasz in his book spoke extensively on the understanding of illness and how an illness is a phenomenon that can be observed without the direct input of the patient. This means that the patient cannot induce a malaria or chicken pox by himself. However, mental illness is very easily manufactured. In fact, psychologists and psychiatrists consider the faking a mental illness, a mental illness in itself; called malingering.[7] Malingering has been seen to deceive the psychologist, psychiatrist, as well as the judge. The judge stands no chance if the psychologists, the psychiatrists are unable, in some cases unwilling, to detect that a subject is merely pretending to be mentally “ill”.
As stated earlier, every person knows the types of behaviours to exhibit in order to be considered mentally ill. There are records of defendants being coached on these behaviours in order to escape culpability.[8]
The 2nd case illustrates the above point. It takes place in the United States of America.
Ronald Exantus, a dialysis nurse, drove from Indianapolis to Versailles, Kentucky, in December 2015. He broke into a home and stabbed 6-year-old Logan Tipton to death with a knife he’d found at the house. The boy’s father held Exantus down until police arrived.
The trial lasted six days. Jurors deliberated for 12 hours before finding Exantus not guilty by reason of insanity of murder and burglary, as reported to WKYT.[9] The jury found him guilty but mentally ill on assault charges.
Defence attorneys admitted that Exantus had killed the little boy, but they argued that he suffered from mental illness and was not acting rationally. He left Indianapolis without baggage, a weapon or a plan, and drove to a place he’d never visited before, they said in court.
Prosecutors argued that Exantus was aware of what he’d done and told police, “I’m sorry, God,” when officers arrived at the scene. He asked for an attorney after being arrested. They’d sought the death penalty.
But jurors heard testimony that Exantus behaved oddly at a state psychiatric center, barking like a dog and tearing at his dreadlocks. He told investigators he was “re-enacting surgery” from the TV show Grey’s Anatomy, according to the Lexington Herald-Leader.
The facts of this case and the findings, are what inspired this article. Not only are the facts similar to the first case, but the conclusions are so different.
We see that in this case, the Defence did not deny the salient facts of the case: The Defendant murdered Logan Tipton (say his name). In a “sane” legal system, that shortens the trial, the verdict and the sentencing. It is not a crime to be mentally ill, it is illegal to kill a person.[10]
However, they relied on extraneous facts about his alleged mental illness which makes him purportedly bark like a dog and tear out his dreadlocks (some would say merely having dreadlocks in itself is a symptom of mental illness).
The facts are not congruent with a person suffering from mental “illness”. Can a “mentally ill” person drive a car across state lines in a 3-hour drive? Is a drunk person considered mentally ill? Or merely inebriated? What state of mind is more impaired in terms of functions? Must a murderer pack a bag? Must a murderer write down his plans on a note book that police will find? Must a murderer murder only in his home town? Is an apology to God the act of a mentally ill person? Would a mentally ill person have the faculty to ask for an attorney? Would a mentally ill person have the faculty to ask for a lawyer, upon arrest? Would a mentally ill person have the faculties to break into a house? Would a mentally ill person have the faculty to identify murder objects and utilise those? Is a person “mentally ill” 24 hours a day? Do mentally ill people not have moments of
“lucidity”? If this is true, how do we distinguish between moments of lucidity and moments mental “illness”, when both are qualified by the morality of their acts?
It is more likely that his zany acts or “evidence” thereof served the function of denying culpability for an egregious and deliberate act of murder. One has heard the expression “senseless” murder and people get convicted for those. All a psychiatrist has to do is observe the acts that are not considered normal (barking, cutting out hair), testify thereon and a jury is able to absolve a black murderer of culpability for killing a white child. This is not random because interracial racial violence in America follows this pattern of black on white 93% of the time.[11]
Further, the contrast [contradiction] between the findings of the jury in respect of the individual charges are worthy of comment.
The jury had four options: not guilty, not guilty by reason of insanity, guilty but mentally ill or guilty.
- On the homicide charge, he was found not guilty by reason of insanity.
- On the burglary charge, he was found not guilty by reason of insanity.
- On the assault charge, he was found guilty but mentally ill
We can see from the findings that the mens rea, which is the law’s way of reading the mind of the criminal displays varying degrees of subjectivity. The mental state required for assault, is not the same required for burglary or murder and according to the jury, the “mental illness” of the defendant prevented him from forming the required mens rea to commit the crimes. They don’t deny that he committed the crimes, but in the same breath they state that he is not guilty. If we answered any of those questions earlier posed, we would see that the jury is abiding by an old if not dated legal fiction.
Why is a different standard applied to rape, murder and more egregious offences?
The 3rd case[12] combines elements of the first two. It takes place in Ondo State Nigeria.
A man called Isaac was walking on a farm path in Ipe Akoko Area in 2018. Lydia Ayeni (say her name) was walking along the same path. According to Isaac he “was tempted by the way her buttocks moved before him on the farm path which made [him] to grab her from behind and forcefully [rape] her”. He killed her with a stone after she called his name.
At trial, he recounted the events as above and went further to state that he doesn’t know why he “got angry” and killed her because he had no quarrel with her. He further testified that he hit her head with a stone until she breathed her last and covered her body in a shallow grave in a nearby bush.
His mother testified he behaved strangely and had the habit of laughing and crying without cause. She stated he had become depressed when he lost his barbershop to a fire. Although she had her suspicion that he had set the shop on fire himself (strange).
According to her, he ran away from home and was discovered to be living in a cemetery after some days after which they moved to Ipe. She testified that no one in their family had any history of mental illness.
The Chief Medical Director of the Ondo State Psychiatric Hospital, testified that he had examined the Defendant and observed a “deep seated anger in him” and noticed that his “thinking faculty was impaired”.
The Doctor testified that he had two contacts with the defendant which revealed that the defendant had a psychotic disorder which caused him to hallucinate, hearing voices telling him to do certain things.
The Defendant admitted to the rape and murder; the autopsy report confirmed that she had been raped and murdered.
The court relied on evidence of the past behaviour as purported by his mother, and corroborated by the prison officials (it is not known whether the prison officials testified of his behaviour on oath, which would be strange, at least unheard of). The court ruled that the Defence had discharged the burden in establishing the insanity of the defendant. He held that the Defendant could not be held responsible for his conduct. He was discharged and acquitted; the prison authority was ordered to release him to his parents, who are to ensure that he receives proper medical care.
It is trite law that facts admitted need not be proved.[13] But here, the facts were proved, yet the prosecution lost. Paying close attention to the facts, a mentally ill person ought not be able to vividly recollect the moments and the triggers leading up to the act.
He admitted that he was enticed by the woman which caused him to rape her. He admitted that he killed her when she called his name. This means that he was trying to conceal evidence of his crime by killing the sole witness. He also vividly recollected burying the victim in a shallow grave near by which was covered. A mentally ill person would not be able to do these things. Only a calculating rapist and murder would.
This is because mental illness has not been fully and accurately explained in such a manner that a court or the general public would be able to distinguish between a malingering subject and an actual mad person. When Governor Ifeanyi Ugwuanyi, of Enugu state instituted a task force to clear the streets of Enugu of all the “mad people” roaming the streets and harassing people. Several members of Task Force reported that many of the mad people were shockingly lucid once they were being restrained and arrested. Others even admitted that they were in fact pretending and were making a living doing so.
In conclusion, because it is possible to replicate symptoms of mental illness simply by malingering, trained professionals are unable to distinguish between a person who is malingering and who is not[14]; the acts being studied simply have to be outside of the projected spectrum of the subject. As minds cannot be read, a criminal should not be excused for committing a crime, no matter his state of mental illness. If a man is deemed to intend the consequence of his act and mental illness is determined strictly by behaviour, then the defence of insanity should NEVER apply.
[1] M’Naghten’s Case (1843) 10 Clark and Finnelly 200, (1843) 8 ER 718, [1843-60] All ER Rep 229
[2] [1961] Thomas Szasz “The Myth of Mental Illness: Foundations of a Theory of Personal Conduct” Harper & Row ISBN 978-0-06-014196-7
[3] Ibid 12.
[4] Bandi X Lee, “The Trump Mental Health Pandemic:” https://bandyxlee.medium.com/the-trump-mental-health-pandemic-56d4197ab32a accessed 12 January 2024
[5] Gunnar Dybwad “Whom do we call Mentally Retarded?” page 28. https://mn.gov/mnddc/parallels2/pdf/70s/74/74-NNS-PCR_Chapter_3.pdf accessed 12th January 2024.
[6] Commissioner of Police v Yakubu Abdullahi [2019] [[FCT/CR/258/2014]]. Unreported; Delivered 20th January 2019 by Hon. Justice Oriji.
[7] SM Saberi et al, Feigned Symptoms among Defendants claiming Psychiatric Problems: Survey of 45 Malingerers, Iran J Psychiatry. 2013 Mar;8(1):14–19.
[8] Arlie Loughnan, “In a Kind of Mad Way: A Historical Perspective of Evidence and Proof of Mental Incapacity” 35 Melbourn University Law Review 1057
[9] https://www.indystar.com/story/news/fox59/2018/03/20/indianapolis-man-gets-insanity-ruling-killing-6-year-old-kentucky-boy/440874002/ accessed 12th January 2024.
[10] Stephen Fray v R [2012] JMCA Crim 55 https://www.courtofappeal.gov.jm/sites/default/files/judgments/Fray%20%28Stephen%29%20v%20R.pdf assessed 12 January 2024.
[11] Jared Taylor “Latest Interracial Crime Stats” https://www.amren.com/news/2022/11/latest-interracial-crime-stats/ accessed 12th January 2023
[12] Dayo Johnson, Ondo court acquits lunatic of rape, murder https://www.vanguardngr.com/2020/12/ondo-court-acquits-lunatic-of-rape-murder/ accessed 12th January 2024.
[13] AUDU v. FRN (2024) LPELR-62977(SC). “The law is certain that what is admitted needs no further proof. The Appellant cannot therefore seek to resile form his serial viva voce admissions as to his status in relation to the Project, at this stage of the proceedings on appeal. It is an admitted and established fact that as an Assistant Director in the office of the Accountant General of the Federation, he was also the Procurement Officer in charge of signing the letters of award of contracts in respect of the World Bank Project domiciled in that office on behalf of the Accountant General.” Per JUMMAI HANNATU SANKEY, JSC (Pp 24 – 24 Paras B – D).
[14] Thomas Szasz: The Myth of Mental Illness: Foundations of a Theory of Personal Conduct” p12.
